Exhibit 10.33
XXXXX & WESSON
LAW ENFORCEMENT DEALER AGREEMENT
THIS AGREEMENT is effective as of January 1, 2002 and expires on December 31,
2002 between XXXXX & WESSON CORP., a Delaware corporation (Xxxxx & Wesson) with
offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 and <>, <>, <>, <>, <> (DEALER).
1. APPOINTMENT. Xxxxx & Wesson hereby appoints Dealer as a non-exclusive law
enforcement dealer for Xxxxx & Wesson law enforcement equipment (the Products)
in accordance with the terms and conditions of this Agreement.
2. COMPLIANCE WITH FIREARMS LAWS. Dealer acknowledges that the distribution
and sale of Xxxxx & Wesson firearms are governed by responsibilities and
obligations delineated by law and by virtue of this agreement with Xxxxx &
Wesson. Dealer represents that it is presently in full compliance with all
federal, state and local laws, statutes, ordinances and regulations relating to
the distribution and sale of firearms. Dealer further represents and
acknowledges that the name and reputation of Xxxxx & Wesson and its products
constitute a valuable asset, and Dealer shall conduct its operations and the
distribution and sale of the Products ethically and strictly in accordance with
the letter and spirit of all applicable laws so that the name and reputation of
Xxxxx & Wesson and its Products shall not be adversely affected. Dealer
acknowledges this is a material condition and term to this Agreement. Failure to
comply with this Provision affords Xxxxx & Wesson the right to terminate this
Agreement without further obligation or liability on the part of Xxxxx & Wesson.
3. DEALER'S DUTIES. The Dealer shall:
(a) Comply with all federal, state and local laws, statutes,
ordinances and regulations relating to the sale and distribution of
firearms during the term of this agreement.
(b) Employ sufficient adequately trained and competent
personnel who will follow all federal, state and local laws, statutes,
ordinances and regulations relating to the sale and distribution of
firearms during the term of this agreement.
(c) Restrict the sale of firearms to those persons or dealers
lawfully authorized to purchase or own firearms.
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(d) Not knowingly sell Xxxxx & Wesson products to any person
or entity who is not complying with the laws and regulations relating to
the sale or distribution of firearms.
(e) Maintain all required books and records relating to the
sale or distribution of firearms and cooperate with all appropriate law
enforcement inquiries relating to those books and records.
(f) Equip all new Xxxxx & Wesson firearms sold or distributed
with a locking device provided by Xxxxx & Wesson. Dealer further agrees
that it will provide all applicable Xxxxx & Wesson safety and instruction
manuals with new Xxxxx & Wesson products.
(g) Adhere to the sales policies of Xxxxx & Wesson which may
be expressed or modified by Xxxxx & Wesson as it deems necessary from time
to time.
(h) Assist Xxxxx & Wesson in processing warranty claims and
otherwise fulfilling its obligations as provided in such warranties.
(i) Promote the Product to the Individual Officer (IO) market,
in a professional and well-merchandised manner satisfactory to Xxxxx &
Wesson.
(j) Place an opening order of at least 5 handgun SKU's for
stock purposes to service the IO market. The mix of product must be
approved by the appropriate S&W Regional Manager or Representative. No. 22
LR Pistols, .44 Magnum or .44 Special handguns will be permitted to be
sold under this program.
(k) Submit a copy of the attached Individual Officer Purchase
Form with each re-order for replacement product.
(1) Adhere to all state, local and federal laws and
regulations regarding the sale and transfer of high capacity magazines.
Pistols sold under this program will be in the LE configuration, i.e., 3
high capacity magazines (marked for L.E.) except for the following models:
SW40VE, SW9VE, M410, M457, M908 and M910 which will be shipped with 2
magazines each.
(m) NOT bid FET exempt handguns beyond 25 guns, either
directly or through a third account. Any such bids, 25 guns or less, must
be processed through Sporting Goods Distributors.
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(n) Pay all Xxxxx & Wesson invoices promptly when due.
(o) Provide financial statements, including, but not limited
to, a balance sheet, profit and loss statement and changes in cash flow,
if requested to do so by Xxxxx & Wesson. Xxxxx & Wesson agrees to maintain
the confidentiality of any financial statement produced pursuant to this
paragraph, except as otherwise required by law or governmental agency.
(p) Advertise for direct sale of the Products to law
enforcement and security personnel.
4. DEALER'S KEY PERSONNEL AND AFFILIATES. Dealer represents and warrants
and warrants that the persons or entities named in Exhibit A include (a) all of
the Dealer's key personnel, officers, and directors, and (b) the individuals or
entities that control or are controlled by the Dealer. Dealer shall give written
notice to Xxxxx & Wesson of any change in Exhibit A within thirty (30) days of
such change.
5. PROHIBITIONS. Dealer shall not, directly or indirectly:
(a) Sell new products at "gun shows".
(b) Possess or transfer any large capacity ammunition feeding
devices manufactured by Xxxxx & Wesson for sale to purchasers except for
those sold to law enforcement agencies or other purchasers specified by
law in paragraph (b) of Section 178.40A of the Code of Federal
Regulations.
(c) Sell or market new Xxxxx & Wesson products through Shotgun
News, Gun List, or other similar magazines.
(d) Knowingly sell firearms to persons or dealers where false
or misleading statements have been made with respect to the information
required to purchase a firearm.
(e) Knowingly sell or deliver any firearm to any person or
dealer if the purchase or possession would be in violation of any federal,
state or local law, statute, ordinance or regulation applicable at the
place of sale or delivery.
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(f) Sell new Products purchased directly from Xxxxx & Wesson
to any individual other than a bonafide individual law enforcement
officer.
(g) Export any order.
6. TERMS OF SALE. This Agreement, as well as Xxxxx & Wesson's invoice and
order acknowledgment, shall govern the purchase and sale of all Products to
Dealer. To the extent there is any inconsistency between those documents, this
Agreement shall govern. Xxxxx & Wesson reserves the right to change Products,
prices, terms of sale and sales policies by giving written notice of any such
change to Dealer.
7. INDEMNIFICATION. Dealer shall indemnify, defend, hold harmless, and
reimburse Xxxxx & Wesson from any and all claims, causes of action, losses,
damages, wrongful death claims, personal injury claims, property damage claims,
expenses and costs as they are incurred (including reasonable attorney's fees,
expenses and costs of litigation) or liability of any kind arising directly or
indirectly (hereinafter "Claims") in tort, contract or otherwise, out of either
(a) Dealer's alleged or actual violation or breach of this Agreement; (b) the
handling, possession or use of the Products by Dealer or any of its employees or
agents (excluding, however, liability arising solely out of the manufacture of
the Products by Xxxxx & Wesson); and/or (c) any Claims asserted by any third
party against Xxxxx & Wesson which were caused (or alleged to be), in whole or
part, by the negligence, misconduct, action or omissions of Dealer.
8. WARRANTY. Xxxxx & Wesson may provide express written warranties on
Xxxxx & Wesson Products. SUCH WARRANTIES ARE IN LIEU OF, AND XXXXX & WESSON
HEREBY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Dealer shall not make any representations or warranties concerning the
Products except those contained in
Xxxxx & Wesson prepared materials accompanying the Product. Dealer is not
authorized to extend or otherwise modify (or permit any vendee to extend or
otherwise modify) Xxxxx & Wesson's warranty with respect to any Product. Any
statements or warranties, written or oral, made by Dealer with respect to a
product that exceeds, modifies or deviates from the applicable warranty for such
product provided by Xxxxx & Wesson shall be the sole responsibility of Dealer
unless Xxxxx & Wesson has given its written authorization for such modification
or deviation.
9. CREDIT. Xxxxx & Wesson may, in its sole discretion, extend credit to
Dealer, and ship Products to Dealer on open account. If Xxxxx & Wesson is not
satisfied with the credit standing of Dealer, Xxxxx & Wesson may immediately
discontinue extending credit to Dealer and Dealer will immediately make payment
of all outstanding amounts. In the event Dealer fails to pay Xxxxx & Wesson any
amount when due, Xxxxx & Wesson shall assess Dealer a late charge equal to the
greater of 2% per month or the highest rate permissible under applicable law on
the outstanding balance which is due and owing.
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10. RETURNS. Dealer shall not, upon the expiration or termination of this
Agreement, return inventory or any unsold product to Xxxxx & Wesson (unless
agreed upon by Xxxxx & Wesson) or seek reimbursement or any other damages
relating to prospective profits on sales or anticipated sales of products.
11. TRADE NAMES AND TRADEMARKS. Xxxxx & Wesson grants to Dealer a
nontransferable, nonexclusive license to use Xxxxx & Wesson trade names and
trademarks pursuant to the sales of products as set forth in this agreement
provided that Dealer shall not use such trade names or trademarks as any part of
its title or the name of its business. Dealer shall also not use such trade
names or trademarks in any manner in connection with an effort to sell the goods
of others, whether or not such goods are competitive with the Products. Upon
termination of this Agreement, Dealer shall immediately discontinue any use of
Xxxxx & Wesson's trademarks, trade names, and any other identification with
Xxxxx & Wesson.
12. LIMITATION OF LIABILITY. To the fullest extent permitted by law, the
parties waive and relinquish any Claims, demands, causes of action or recoveries
for punitive damages, exemplary damages, or statutory damages. Xxxxx & Wesson
shall not be liable for indirect, special, incidental or other damages arising
under this Agreement or otherwise with respect to the sale of the Products,
including, any lost revenues or profits, consequential and/or incidental
damages, business interruption or damage to business reputation, regardless of
the theory upon which any Claim may be based, including any statutory causes of
action or claims. Notwithstanding the term of any limited written warranty
provided to Dealer, or in the event said limited written warranty fails of its
essential purpose, in no event xxxx Xxxxx & Wesson's entire liability to Dealer
exceed the purchase price actually paid by Dealer for the Products hereunder, or
any defective portion thereof, whichever is the lesser amount. Any written
limited warranty is the sole and exclusive remedy of Dealer.
No Claim of any kind may be brought against Xxxxx & Wesson by Dealer more than
one year after the Claim has arisen. In addition, Dealer may not make any Claim
for shortage or damage in any delivery to Dealer more than fourteen business
days after Dealer's receipt of the delivery; and, all other Claims, including
Claims for allegedly defective goods, must be made within fifteen days after
Dealer learns of the facts on which such Claim is based, but in no event later
than one year after Dealer's receipt of the goods.
13. FORCE MAJEURE. Xxxxx & Wesson shall have no liability or obligation to
Dealer of any kind, including, but not limited to, any obligation to deliver
Products or provide maintenance, warranty, repair or other services, arising
from any delay or failure or failure to perform all or any part of this
Agreement as a result of causes, conduct or occurrence beyond Xxxxx & Wesson's
reasonable control, including, but not limited to, commercial impracticability,
fire, flood, act of war, civil disorder or disobedience, act of public enemies,
problems associated with manufacture or transportation (including car or truck
shortages), acts or failure to act of any state, federal or foreign governmental
or regulatory authorities, labor disputes, strikes or failures of suppliers to
make timely deliveries of materials, goods or services to Xxxxx & Wesson.
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14. DEFAULT. The failure of Dealer to perform any obligations hereunder,
including without limitation, the breach of this Agreement, the payment of the
purchase price for Products and/or all other amounts due hereunder, the failure
to materially perform other agreements between Dealer and Xxxxx & Wesson, or
Dealer's bankruptcy, insolvency, or inability to pay its debts when they become
due, shall constitute a default under this Agreement and shall, in addition to
any other remedies in law, equity or under this Agreement, afford Xxxxx & Wesson
all the remedies of a secured party under the Uniform Commercial Code. In the
event of default, Xxxxx & Wesson may, in addition to canceling this Agreement
without liability to Dealer, refuse to provide warranty, repair and/or
maintenance services and/or refuse to deliver Products under this or any other
service, purchase or maintenance agreement relating to the Products, and may
also cancel this Agreement and any pending orders or agreements without
liability to Dealer. Notwithstanding the foregoing, it is understood that Xxxxx
& Wesson's remedies hereunder are cumulative and nonexclusive.
15. BREACH OF CONTRACT. A violation or breach of any item of this
agreement, which may be determined in the sole and unfettered discretion of
Xxxxx & Wesson, may result, in the right of Xxxxx & Wesson to cancel this
agreement. Xxxxx & Wesson may in its discretion also issue a warning that a
Dealer is operating in violation of the agreement, suspend shipments, or take
such other steps as it deems appropriate under the circumstances. No acts or
omissions by Xxxxx & Wesson shall be deemed a waiver of any rights under this
agreement.
16. TERM. This Agreement shall remain in effect until December 31, 2002,
when it will automatically terminate; provided, however, that either party may
terminate this Agreement without cause by giving thirty (30) days prior written
notice to the other party and, provided further, that Xxxxx & Wesson may
terminate this Agreement immediately by giving written notice of termination if
any of the following occur:
(a) a breach, violation or failure to perform any term of this
Agreement by Dealer;
(b) failure to pay the purchase price to Xxxxx & Wesson when
due;
(c) a change in the business, operation, control, financial
condition or business affairs of Dealer including, without limitation, a
change in the parties listed in Exhibit A, the filing of any lien against
Dealer or attachment of any assets, the entry of a judgment against Dealer
in an amount in excess of $25,000, the filing of any petition in
bankruptcy by or against Dealer, Dealer's insolvency, reorganization or
inability to pay its debts when due; or
(d) Dealer has failed to provide any financial statements as
required by Section 3(e).
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(e) Xxxxx & Wesson may suspend or terminate all Dealer rights,
with or without notice, if a claim is brought by any governmental or law
enforcement agency in which the business or distribution practices of
Dealer are called into question.
17. SEVERABILITY. If any term, covenant, warranty or condition of this
Agreement or the application thereof to any person or circumstance shall, to any
extent, be held or deemed invalid or unenforceable, the remainder of this
Agreement or the application of such term, covenant or provision, to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not he affected thereby, and each remaining term, covenant, or provision
of this Agreement shall be deemed valid and shall be enforced to the fullest
extent permitted by law.
18. NON-EXCLUSIVE INATURE. Xxxxx & Wesson reserves the right to appoint
other Dealers and to make direct sales to any other person or entity. It is
expressly agreed that Dealer's rights are non-exclusive. I, The Dealer is not an
agent, employee or franchisee of Xxxxx & Wesson and may not assign or license
any of its rights or obligations under this Agreement.
19. ACCEPTANCE, MERGER AND INTEGRATION. Xxxxx & Wesson will be deemed to
have accepted this Agreement when Xxxxx & Wesson returns an acknowledged copy of
this Agreement to Dealer, or at I Xxxxx & Wesson's option, when Xxxxx & Wesson
begins substantial performance under this Agreement. Dealer accepts this
Agreement by acknowledging or signing a copy of his Agreement or by acceptance
of delivery of the Products or services hereunder. Notwithstanding the manner in
which Dealer accepts, Dealer's acceptance is limited exclusively to the
acceptance of Xxxxx & Wesson's terms and conditions set forth in this Agreement
only. Xxxxx & Wesson hereby objects to and rejects any proposal by Dealer for
additional or different terms in connection with the Products or services
provided. Any contrary terms provided by Dealer are agreed to be superfluous and
without any force and effect. This Agreement, which includes all the terms and
conditions set forth herein and all riders or limited written warranties, if
any, provided by Xxxxx & Wesson, is intended to be the exclusive and final
statement of the terms and understandings relative to the subject matter hereof,
merging herein, and superseding all negotiations and prior written or oral
agreements between the parties as to the subject matter of the purchase of the
Products or services hereunder. There are no promises, representations or
understandings made in connection with this Agreement or contemporaneous wit the
execution hereof, except as set forth in this Agreement.
20. ARBITRATION. Except for the right of either party to apply to a court
of competent jurisdiction located within the Commonwealth of Massachusetts for
equitable relief to preserve the status quo or prevent irreparable harm, any
controversy or claim relating to this Agreement shall be settled by arbitration
in the City of Springfield, Massachusetts, in accordance with the rules of the
American Arbitration Association or some other similar organization mutually
agreeable to the parties. The arbitrator shall not be empowered to grant
exemplary or punitive damages or any damages in excess of those damages
permitted or limited under the express terms of this Agreement. Dealer shall be
liable for all collection costs and expenses, including collection agency and
reasonable attorney's fees and costs, incurred by Xxxxx & Wesson to collect
amounts owed to Xxxxx & Wesson by Dealer.
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21. ATTORNEY'S FEES. In the event it becomes necessary for Xxxxx & Wesson
to enforce the terms and conditions of this Agreement by litigation or
otherwise, or to defend itself in any Controversy (as defined herein),
litigation, Claim, demand, dispute, or cause of action arising out of or as a
result of this Agreement or the Products or services provided hereunder, and if
Xxxxx & Wesson is the substantially prevailing party in said Controversy,
litigation, Claim, demand, dispute, or cause of action, then Xxxxx & Wesson
shall be entitled to recover, in addition to any other relief granted or damages
assessed, its attorney's fees, expert witness fees, costs, and all expenses of
litigation.
22. MISCELLANEOUS. This Agreement constitutes the entire agreement between
the parties and supersedes any prior negotiations, representations or
agreements. The delay or failure of either party to assert or exercise any of
its rights shall not operate as a waiver of such right except as expressly
provided in this Agreement.
DEALER SIGNATURE XXXXX & WESSON SIGNATURE
_____________________________ ________________________________
_____________________________ ________________________________
Print Name and Title Print Name and Title
_____________________________ ________________________________
DATE DATE
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XXXXX & WESSON
INDIVIDUAL LAW ENFORCEMENT OFFICER PURCHASE
FORM
I __________________________________ certify that I am a duly and fully sworn
Peace Officer (OFFICERS NAME PRINTED) with the below listed department and am
authorized to purchase the described firearm for use in either an "ON DUTY" or
"OFF DUTY" application.
__________________________
(OFFICER'S SIGNATURE)
OFFICER' NAME __________________________________ RANK ______ ID# ____________
OFFICER'S DEPARTMENT OR AGENCY ________________________________________________
DEPARTMENT / AGENCY ADDRESS
CITY __________________________________ COUNTY _________________ ZIP ________
DEPARTMENT / AGENCY TELEPHONE _________________________________________________
MODEL PURCHASED (PROGRAM MODELS ONLY)__________________________________________
SERIAL NUMBER ________________________________
DATE OF PURCHASE _____________________________
XXXXX & WESSON L.E. DEALER<>
ADDRESS <>
CITY<> STATE<> ZIP<>
SALESPERSON'S SIGNATURE _______________________________________________________
* A COPY OF THE PURCHASING OFFICERS AGENCY IDENTIFICATION CARD MUST BE ATTACHED
TO THIS FORM.
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